Mr Mark Tighe of The Sunday Times and Dublin City University

Whether DCU was justified in refusing access to further records concerning a link between DCU and a named third party institute on the ground that no further records exist or can be found

29 January 2020

Background

On 14 June 2019, the applicant made a request for all records relating to the plans for DCU to link up with a named third party institute, the decision to proceed with this link, and the decision to announce it in June 2018, along with all records relating to the relationship between the two parties since then. He also requested all records relating to a decision made by DCU to provide an honorary doctorate to a named third party.

DCU issued its original decision on 9 July 2019. It did not identify any specific records as relevant to the first part of the request. Instead, it provided an outline of the relationship between DCU and the third party institute and stated that there has been no joint activity between the parties to date. It also granted access to one record relating to the second part of the applicant’s request.

The applicant sought an internal review of that decision on 7 August 2019, on the ground that no records were released to him with respect to the first part of his request.

On 28 August 2019, DCU issued its internal review decision. It released a number of records, consisting of the Memorandum of Understanding between the two parties, a series of emails regarding the announcement of the link, and an email sent from a member of staff in the third party institute to the President of DCU.

On 14 October 2019, the applicant sought a review by this Office of DCU’s decision. He contended that records relating to the origin of the Memorandum and the link with the third party institute, along with records created since the Memorandum was signed, should exist.

I have now decided to bring this case to a close by way of a formal, binding decision. In conducting the review, I have had regard to correspondence between the applicant and DCU as outlined above and to communications between this Office and both the applicant and DCU on the matter. I have also had regard to the contents of the records DCU provided to this Office during the review.

Scope of Review

This review is concerned solely with whether DCU was justified in refusing access to any further records concerning its link up with a named third party institute

Analysis and Findings

As outlined above, the applicant sought a review by this Office of DCU’s decision on the first part of his request on the ground that other relevant records, apart from those identified and released by DCU, should exist. As such, this Office deemed section 15(1)(a) of the FOI Act to be of relevance. That section provides for the refusal of a request where the record sought does not exist or where it cannot be found after all reasonable steps to ascertain its whereabouts have been taken

Ms McCrory of this Office invited DCU to make a submission on the searches it undertook to locate relevant records and to explain why no further records exist or could be found. DCU provided a submission in response, following which Ms McCrory sought clarification of a number of points relating to the searches undertaken and to the process relating to the establishment of links such as the one at issue.

In response, DCU stated that following an extensive search, including a broadening of the search terms used, it identified five additional records but sought to withhold them on the ground that they are exempt from release.

The role of this Office is to review decisions taken by public bodies on requests, not to effectively act as a first instance decision maker. The additional records identified by DCU have not been through the formal FOI process. In the circumstances, I consider that the most appropriate course of action to take at this stage is to annul the decision of DCU in its entirety, the effect of which is that DCU must consider the applicant’s request afresh and make a new, first instance decision in accordance with the provisions of the FOI Act. Should the applicant be dissatisfied with DCU’s fresh processing of the request and find it necessary to apply to this Office for external review in due course, I will do my best to ensure that any further review is given priority.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of DCU to refuse, under section 15(1)(a), the applicant’s request for records relating to the establishment of a link between DCU and a named third party institute. I direct DCU to conduct a fresh decision-making process in respect of the applicant’s request.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.